‘Bellanaboy’ used in Garda attempt to prejudice unrelated case at Killarney District Court.

mayo | environment | news report Saturday January 19, 2008 15:37 by Anthony O'Halloran anthonyohalloran at gmail dot com

Garda smear tactics fail while clutching at straws to prosecute Shell to Sea campaigner with no evidence of any crime committed.

At Killarney District Court, Co. Kerry on Tuesday 15th January 2008, Mr Niall Harnett of Doonagore, Liscannor, Co Clare was acquitted of 2 public order charges following a ruling by Judge James O'Connor, who found that there was no evidence of any crime committed and dismissed the charges after a full hearing of the matter which lasted about 1½ hours.

Garda Brendan Cronin KY144 who initiated the charges, and Garda David Hannon KY180 both testified in court, but cross-examination by Mr Harnett, who represented himself, revealed that the Gardaí had neither evidence nor reasonable cause to suspect that Mr Harnett had committed any offence.

Inspector Barry O’Rourke, prosecuting for the DPP, never even suggested foul play either and could only resort to smear tactics and prejudice in raising Mr Harnett’s Shell to Sea profile as ‘a protester with an interest in shoving his nose into business that didn’t concern him’, and had to be reminded by the judge that this was no crime.

On Saturday 21st October 2007, Mr Niall Harnett was in Killarney for a weekend break with his girlfriend. They were walking through town later that night when they came upon an incident which involved some Gardaí who were restoring order following a row which involved a number of men.

Evidence in court revealed that Mr Harnett was standing close by as an onlooker when Garda Cronin challenged him. Garda Cronin testified that Mr Harnett was interfering and he felt threatened by him. Mr Harnett testified that Garda Cronin was pushing him around and shouting at him, refusing to say how he was interfering when questioned. Mr Harnett testified that he had a lawful reason to be there and Garda Cronin had offered no lawful reason for him to move on. Garda Cronin said he arrested Mr Harnett for failing to comply with his direction.

Mr Harnett was arrested and held in custody at Killarney Garda Station. He was charged under Sections 8 & 24 of the Criminal Justice (Public Order) Act, 1994 and released from custody 2½ hours later.

In court on Tuesday, Mr Harnett requested to make a submission on preliminary matters and an application for strike out of the charges, relating to his treatment in custody and the lack of Garda evidence discovered to him in a pre-trial Gary Doyle Order when Judge O‘Connor stipulated that a detailed precis of evidence was required. He began to read from a written submission which he handed to Judge James O’Connor, but he was interrupted shortly afterwards by the judge who said that this submission was going to the heart of ‘core evidence’ and as such could not be considered as ‘preliminary’ at all. He disallowed the submission and put the matter back for a full hearing later, despite Mr Harnett’s indication that he had not expected and was unprepared for a full trial that day.

The case was called again later, the last of the day, which is usual for ‘contested matters’.

Inspector Barry O’Rourke, prosecuting for the DPP (Director of Public Prosecutions) called Garda Brendan Cronin as his first witness.

Garda Cronin read a statement from his official Garda notebook giving brief evidence to the effect that he was investigating a row with another Garda when Mr Harnett approached the scene. He said he explained to Mr Harnett that they were investigating a row, that he was interfering with their attempts to do so and that he felt threatened by Mr Harnett. He said that he arrested Mr Harnett after he refused to move on following directions given under Section 8 of the Public Order Act.

Under cross-examination from Mr Harnett, who defended himself in court, Garda Cronin conceded that Mr Harnett had neither spoken nor attempted to engage with anyone at the scene. When questioned as to how this amounted to interference, Garda Cronin simply repeated what he’d said before in testimony. When questioned on what was threatening about Mr Harnett’s behaviour, he said that his behaviour was ‘hindering’ their investigation. When questioned on that, he said that Mr Harnett was ‘not helping’. Mr Harnett asked Garda Cronin “Well which was it - threatening, hindering, or unhelpful”. Garda Cronin just repeated himself. Mr Harnett asked him was there anything provocative at all about his behaviour and Garda Cronin said “No”.

Mr Harnett then quoted from the charge sheet which said that Garda Cronin had suspected, with reasonable cause, that Mr Harnett, without lawful authority or reasonable excuse, was acting in a manner which consisted of loitering in a public place in circumstances, which gave rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace. Mr Harnett again asked Garda Cronin what was it about his behaviour that led him to suspect any of these things. Garda Cronin simply looked to the judge and muttered something like “Huh?”

The judge repeated the requirements as set out in Section 8 of the Criminal Justice (Public Order) Act 1994, and Mr Harnett went on to ask Garda Cronin to accept the fact that there had been nothing provocative about his behaviour at all and had been no threat to anyone or any thing or to the maintenance of the public peace. Garda Cronin appeared dumbstruck by the law and an embarrassing silence filled the courtroom, only to be interrupted by Mr Harnett when he concluded with “No further questions, Judge”.

Garda David Hannon was then called to give evidence for the prosecution which amounted to not much more than ‘man came to area, man stayed in area, man asked to leave the area under Section 8 as he had nothing to do with the incident, man failed to leave area’. Under cross-examination from Mr Harnett, Garda Hannon conceded that there was nothing about Mr Harnett’s arrival on the scene that amounted to threatening interference or provocative behaviour at all.

Mr Harnett then took the stand to give his own evidence of what had happened. He said he had arrived on the scene and was standing close to the Gardaí who were dealing with “what appeared to have been a row“. He said that Garda Cronin approached him very aggressively and pushed him hard into the chest knocking him backwards. He said Garda Cronin told him to ‘stop interfering’. He said he asked Garda Cronin to explain how he was interfering and he refused. He said he began to explain why he was there but Garda Cronin kept bullying and shouting over him and insisting that he was interfering. He said that Garda Cronin appeared to change tactics when challenged and ask Mr Harnett for his name and address. Mr Harnett asked him why he felt entitled to ask for it and Garda Cronin replied only to say that if Mr Harnett didn’t give him his name and address he would be arrested. Mr Harnett told Garda Cronin that he had committed no offence, that he was not interfering, that Garda Cronin wouldn’t explain how he was interfering, and in those circumstances he asked Garda Cronin why he felt entitled to ask him for his name and address. Mr Harnett was then told that he was under arrest, physically restrained, put in to a Garda van and brought into custody at Killarney Garda station.

Mr Harnett went on to give an account of his treatment in custody. He said he had written to the Gardaí to ask that the member in charge, (who has responsibility for the treatment of persons in custody in accordance with the regulations), Garda Theresa Wedel KY166 be called as a witness that day in court and be given the opportunity to tell her side of the story. Inspector O’Rourke, prosecuting, simply said that she would not be called.

Mr Harnett went on to say that when he was introduced to Garda Wedel at the station she, and the other 2 Gardaí, had bullied him into making one phone call before being given a copy of his rights in custody. He says he requested and was denied access to a solicitor and a doctor despite having received an injury to his hand while being arrested, which was noted in the custody record. He said he was searched and had property confiscated from him, including his glasses, and when he was finally given a copy of his ‘custody rights’ he was refused his glasses and not allowed to read his rights and forced to the cells despite protesting vigorously in the company of all three Gardaí.

2 Hours later Mr Harnett was charged under Section 8 of the Public Order Act for failure to comply with a direction given by a Garda Cronin and Section 24 of the same act for failing to provide the said Garda with his name and address. Mr Harnett said he was asked to sign a bail bond to appear at Killarney Court on November 20th 2007 but he was legally unsure whether he should sign it or not and asked the member in charge Garda Theresa Wedel whether a solicitor had been called. Garda Wedel said that she had tried to call a solicitor (and a doctor) but none were available. Mr Harnett refused to sign the bond at this stage and was returned to the cells. A half-hour later Mr Harnett was given the option to sign the bail bond again and he said that circumstances where his girlfriend was alone in town and him stuck in a cell he felt compelled to sign the bond, under duress. He said his property was returned to him but an issue arose over one item of property and Garda Wedel scrunched up the envelope that had contained his property and threw it in the bin behind her. Mr Harnett said he asked her were the contents of my property accounted for on the envelope and asked her could he see the envelope. She said “It’s gone now Niall”. He asked her would she retrieve it from the bin and let him see it, to which she replied “No, it’s gone now Niall”.

Mr Harnett pointed out to the judge a number of serious omissions from the custody record. He said that there was no accounting for calls allegedly made by Garda Wedel to a solicitor and a doctor. Nor was there was any record of the search and his personal property accounted for. Mr Harnett pointed out that these were abuses contrary to Sections 17(6), 21 & 23 of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, which provide for 1) a record of any search, 2) medical treatment, and 3) matters to be recorded, respectively. Mr Harnett again reminded the court that his glasses had also been refused him so as to disallow him from reading the copy his ‘rights in custody’.

Inspector Barry O’Rourke stood up to cross-examine Mr Harnett. He asked him why he had not put his evidence of treatment in custody to Garda’s Cronin and Hannon in cross-examination of them. Mr Harnett said he had no problem doing so now if the court felt it was important to recall those witnesses. Inspector O’Rourke declined the offer. Mr Harnett went on to point out that the Gardaí had been invited to present Garda Wedel and her testimony would have helped shine some light on the matter, but they had declined that also.

Inspector O’Rourke went on to ask “Are you the same Niall Harnett that has been involved in public order disturbances up in Bellanaboy, Co Mayo”. Mr Harnett raised an objection to the judge about the relevance of this but went on to say that what had been going on at Bellanaboy over the past year and a half amounted to Garda abuse of power with violence when dealing with peaceful protest, as witnessed by many.

Inspector O’Rourke asked Mr Harnett to say what it was about his behaviour that night in Killarney that drew the attention of Garda Cronin. Mr Harnett conceded that he would have an interest in witnessing Garda behaviour given his own experiences of abusive Gardaí.

Inspector O’Rourke, in cross-examination, never suggested that Mr Harnett had committed any offence at all but rather concluded by putting it to Mr Harnett that he was simply ‘sticking his nose into business that didn‘t concern him’.

In conclusion, Judge James O’Connor expressed concern about Mr Harnett’s treatment in custody especially with regard to him being refused his glasses to read his rights.

He went on to give his ruling on the matter and said simply that Mr Harnett had committed no crime.

He dismissed both charges.

I spoke with Niall Harnett afterwards.

AO’H - “How do feel Niall, you must be happy with the result?”

NH - “Yeah obviously. It’s clear there was no case to answer.”

AO’H - “Why do you think they prosecuted you?”

NH - “The Gardaí don’t like me because I’ve challenged them at Bellanaboy and tried to hold them accountable to the law. Garda Theresa Wedel KY166 has been to Bellanaboy and is known there as a bully. When I came to the station she knew me. “Niall” she said, “what are you doing down here so far away from Bellanaboy? To what do we owe the pleasure?”

AO’H - “We heard today in court that charges were withdrawn against the men involved in the earlier incident referred to by Garda Cronin. It’s strange then that they took such an interest in prosecuting you.”

NH - “Well it’s clear they knew me and Inspector O’Rourke did some homework on me. He knows there was no case to answer and no cause to prosecute. In spite of that, it appears he decided to waste the court's time and abuse the processes of law, in an attempt to teach me a lesson for having my eyes and ears open to Garda behaviour in public. And I’m surprised he chose to resort to smear and prejudice only, because he had appeared to me to be an intelligent lawyer, till now. He’s articulate too, and he knows it, but maybe he’ll learn to keep his mouth shut in future.”

AO’H - “Are you going to take this any further?”

NH - “Well I‘m certainly looking at my options.”

AO’H - “You’ve a few more court cases coming up haven’t you?”

NH - “Yes, I’m charged with similar offences at Bellanaboy. That’s set for hearing on 12th March at Belmullet District Court. I’m contesting that also”.

AO’H - “What about your own High Court case against Sgt. Conor O’Reilly and An Garda Síochána?

NH - “That’s back for mention in the High Court in early March also, to set a date for a full hearing.”

AO’H - “How do you feel about representing yourself?”

NH - “It’s not easy but I feel it’s the right thing for me anyway. The biggest advantage over having a lawyer is that I know exactly what happened, I was there. It’s hard to have to make the courtroom your practice ground though. You find no forgiveness there if you make a mistake. But I’m learning and I get great help and advice from my friends Seán Ryan and Owen Rice. I want to thank them especially.